Proving Undue Influence to set aside a Will can be difficult

A California Trust Attorney can determine the facts of your case in order to see if there is undue influence. Many times, explains Brian D. Lerner, an heir is feeling like he or she got the short end of the stick due to the fact that there appears to be undue influence.

Brian Lerner, a California Trust Attorney, states that a presumption of undue influence exists if the following conditions are met: One set of arguments which you could show undue influence, explains the California Trust Attorney would be showing the following: A confidential relationship existed between the chief beneficiary and the testator; The provisions of the will are inconsistent with the testator’s intentions expressed before and after the will’s execution explains the California Trust Attorney; Brian Lerner states the next element would be the chief beneficiary’s relationship with the testator gave the former the opportunity to control the testamentary act; The testator’s mental or physical condition permitted a subversion of his or her free will; and finally explains the California Trust Attorney would be the chief beneficiary under the will was active in procuring it.

However, Brian Lerner, a California Trust Attorney explains that there is a second set of facts sufficient to raise a presumption of undue influence (separate from the first set of facts) which includes the following: The beneficiary’s active participation in procuring the will; A confidential relationship between the testator and beneficiary; and Undue benefit to the beneficiary under the will.

Brian Lerner, California Trust Attorney states that because this second set of facts is more concise and somewhat less burdensome to the party challenging the validity of the will, it is more frequently used to raise the presumption of undue influence. Either way, the California Trust Attorney must bring this matter to Court and must present the case with sufficient detail, evidence, witnesses and declarations in order to properly make the case that undue influence exists. By the same token, explains Brian D. Lerner, some heir or beneficiary who feels that they can prove undue influence, may be wrong. The California Trust attorney can be on both sides of matter. Brian Lerner states that the California Trust Attorney can argue with supporting evidence that there was undue influence, or conversely, argue that there was not undue influence.

Brian Lerner explains that there must be active procurement of a Will and that the California Trust Attorney must prove this by a combination of factors. It often is demonstrated by circumstantial evidence. Brian Lerner, California Trust Attorney states that the beneficiary’s presence at the execution of the will is not determinative. Evidence of circumstances before and after the will execution may be considered if it tends to show undue influence at the time of will execution. Note that the California Trust Attorney explains that the beneficiary’s presence at the execution of the will is not enough to prove active procurement of the will. There must be some evidence that the beneficiary influenced the actual dispositive provisions of the will. Conversely, Brian Lerner explains that the beneficiary’s absence at the execution of the will does not necessarily mean that he or she did not actively procure the will. For example, the California Trust Attorney states in one case, the beneficiary was a psychic who convinced the testator that she was in communication with the testator’s deceased relatives. Although the psychic was not present at the will execution, the court found that she had so completely subverted the testator’s will that it was not unreasonable to conclude that she had actively procured the Will explains Brian D. Lerner. Another case explains the California Trust Attorney is in which the court found that even though the beneficiary was not present at the will execution, he had actively procured the will by refusing to help the testator escape from Nazi Germany unless she made him her sole heir.

Generally, explains Brian D. Lerner, there must be a confidential relationship and the California Trust Attorney states that a confidential relationship exists when one person places trust and confidence in the integrity and fidelity of another.

Finally, explains Brian D. Lerner, California Trust Attorney, you would need to show an undue benefit and that bequeathing property to this particular person is ‘unnatural’. Whether a Will is “unnatural” and whether a beneficiary has unduly profited from a will are questions of fact to be determined in light of the testator’s lifetime experiences and values. Thus, explains the California Trust Attorney, undue influence and proving it are highly factual and individual in each particular case.